30 Aug 2021

Instagram Reels vs TikTok – an IP perspective

The struggle for existing and new users between companies that develop applications is relentless as our lives have been practically moved to the Internet over the years.  It seems that the opposing sides do not choose the means anymore, so this is an IP perspective on Instagram Reels vs TikTok.

Back in 2010, when Instagram was launched, social media (“SM”) networks were used to post personal content and maintain contacts, and Instagram focused on creating a photo-sharing platform.  As the popularity of SM networks increased, sales came into focus and advertising content became a widespread feature.  An SM network collects advertising fees, giving online retailers access to an extremely wide range of potential consumers worldwide. As a result, users get access to more products and services than ever.  Seems like a win-win situation for everyone involved.


What happened before Instagram Reels vs TikTok

However, the situation is not as simple as it seems to be as there is not just one, but a multitude of networks, with new ones often providing innovative features.  Thus, the conflict between Instagram and Snapchat began.  Snapchat was the first to offer users to upload short videos that disappear after 24 hours.  Instagram tried to curb the inevitable laws of competition and shortly thereafter developed the Instagram Stories feature which essentially has the same function as Snapchat.


TikTok suffered the same destiny

A few years ago, TikTok gained exceptional popularity and a multi-million user base.  Some users permanently switched to TikTok.

Instagram did not sit twiddling its thumbs this time either, so in August 2020, it introduced the Instagram Reels feature.  With a few differences, all the main features of TikTok were there.

Although it may seem that IP laws protect an idea, it is quite the opposite.  If protection was granted to the idea as such, only one company could install seat belts in its cars, for instance.  The same logic could be applied to the creation of Instagram Reels.

Furthermore, wasn’t Twitter the first to introduce hashtags that serve to increase the visibility of posts, which all SM networks use widely?  Didn’t Facebook introduce the News Feed?  These are just a few of a bunch of ​​examples.

We could think the same way when thinking about whether Instagram, by creating the Reels feature, infringed IP rights of ByteDance, the company that created TikTok.  So, the very idea of ​​the feature to create and publish short videos is not protected.


What does IP Law say?

Not everything is so simple in the world of IP law.  Even though an idea cannot be protected, the expression of the idea can.  Did one person implement the same idea in the same way as the person who did it before them?  Should Instagram and ByteDance find themselves in court, the court would pose this question and examine the evidence to determine if there were similarities in the expression.  The court would look for similarities in the interface, source code, or some other element of the software, depending on what the applicable law takes as the relevant criteria.  For example, the European Union would consider regulations on source code as relevant, as Gecić Law previously wrote.

This is just one of the many elements that an IP dispute can have, so it is not easy for a judge to rule.  Also, it is not easy for a company to decide whether to file a lawsuit or not and (therefore) we do not see as many news items on IP disputes in tech as we might expect.

This teaches us that in the world of SM networks there are no good or bad guys, but there are ideas that are spread, developed, and that are constantly taking new forms. These result in new features and new products that make the internet more fun.

Legally speaking, IP is a sincere ally of competition, but also its angry opponent, if abused.